Complainant

Respondent

Anonymised Parties

A General Manager

A Beverage Business

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00033536-001

08/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033536-003

08/01/2020

This case comes before the WRC on behalf of the complainant, A General Manager and the respondent, A Pub business.

Both parties were represented at hearing.

An earlier claim CA-00033536-002 under the Payment of Wages Act, 1991 was withdrawn at hearing.

The Complainant in the case has an extensive background of employment in the Hospitality Industry. Through social contacts she became friends with the owner of a business which comprised a series of Pubs and agreed to take on the role of General Manager at her business. The complainant left her managerial role at a hotel and commenced work on 23 April 2019. She worked 60 -65 hours per week until her employment was terminated on 18 December 2019.

The Complainant brings two cases before the WRC and withdrew a third claim at hearing.

CA-00033536-001 Claim for Unfair Dismissal, Industrial Relations Act

The Claimants representative outlined the background of the claim. The claimant had worked at senior level for many years in the Hospitality Industry before deciding to accept a friend offer to take on the role of General Manager of a group of Pubs in April 2019. The complainant worked hard and was under the impression that she was well regarded and effective at the business.

The claimant had endeavoured to secure a contract of employment on several occasions and received a contract on 17 December 2019, which she signed.

On 18 December 2019 the claimant was requested to attend a meeting in a Hotel setting in the company of the Business owner and Chief Financial Officer. She had not been provided with details of the meeting and assumed it was set to address ongoing operational issues at the business. The Business owner handed the claimant a letter which informed her that she was being dismissed with immediate effect.

The letter went on to outline that she was to be paid for:

1.       1 December -18 December

2.       One-month salary

3.       Christmas bonus, €1,000

4.       Annual leave

The claimant addressed the hearing and recalled how she came to work at the business. she had been approached to run the business by the owner and was not provided with a job description. she managed approximately 300 staff over multiple sites which entailed a high level of responsibility and a high number of hours, frequently 60 -65 hrs per week. Her salary was to be €60,000 annual salary and €20,000 by loyalty bonus

While the claimant had not received formal performance appraisal, in October 2019, the Owner endorsed her performance when she told her that she was the best manager and the business was lucky to have her.

On 9 December, she secured a first sighting of her contract. she asked for revision in terms as the job title reflected food and beverage manager rather than the Group General Manager title. The Company Accountant told her that he would resolve the contractual issue. The claimant told the hearing that she signed the revised contract at 4pm on 17 December 2019, whilst at the same time engaging in a conversation regarding Christmas working hours.

On reflection at hearing, the claimant recalled that a “a coldness “and sense of “exclusion had permeated the employment relationship from October onwards. She said that she had not been included in a discussion on price rises.

On 18 December 2019, the claimant received a call from the business owner to meet in the company of the group accountant outside the property. The claimant offered her home for the purposes of the meeting. The meeting lasted 5 minutes and was held in a Hotel. The claimant was presented with her letter of dismissal with immediate effect and the claimant was in shock, she took the letter and her pay slip a left. Later, she learned that her sister, another employee at the business was also terminated that day. Her phone and email access were also disconnected.

The claimant told the hearing that she was devastated by her treatment and was ill as a result until 3 February 2020.

In answering the Employer representative, the claimant confirmed that her Christmas was ruined by the actions of her former employer. she was not required to handover her role and had not been replaced.

The claimant confirmed that she had only received one contract, that of 17 December 2019

The claimant stated that she had relied on illness benefit before securing another position at €37,000

She had not been provided with an appeal, nor had she requested one. She did not know why she had not actioned an appeal. The claimant said that she was troubled that no reason has been given for her dismissal.

The Claimants representative submitted that the claimant had been unfairly dismissed. She had no awareness that her dismissal was being considered. She was not given reasons for her dismissal an was not permitted representation. She was not afforded a right of appeal.

The claimant’s representative rebutted the employer submission that the complainant was bound by a start date of 17 December as she had worked continuously from April 23. During that time, she had sought provision of a contract of employment

In citing Labour court Case, Beechside Company ltd T/A Park Hotel, Kenmare and a Worker, the claimants representative submitted that the court had affirmed the right to fair procedures while on probation, these rights were denied to the claimant in the case.

He sought a substantial award as a remedy for the distress caused to the claimant.

CA-00033536-003 Terms of Employment

The complainant did not receive a statement on the terms of her employment until December 17, 2019, some 8 months post her start date.

The Respondent was legally obliged to provide the complainant with 5 core terms within 5 days and the balance of terms within 2 months in accordance with the Employment (Miscellaneous Provisions) Act, 2018.

The complainant sought compensation in respect of the contravention of the Act.

The Respondent operates a group of pubs and confirmed the tenure of employment cited by the complainant but disputed the hours she attributed to the employment.

The Respondent disputed both claims. On 20 January 2020, by way of response to the claims lodged by the complainant, the respondent submitted that as the complainant had less than 12-month service, there was no opportunity for her to raise a complaint under the Unfair Dismissals Act 1977

CA-00033536-001 Claim for Unfair Dismissal, Industrial Relations Act

The Employer introduced the contract of employment as Group Manager which existed between the parties and drew the attention of the hearing to section 3.2 on Probation. The employer’s representative contended that this clause started on the first day of the execution of the contract and the claimant was terminated in accordance with this clause on 18 December 2019. The employment had not succeeded.

This clause carried a 3-month probation period with a discretion to extend that probation “for the better assessment of the employees’ performance “

The Chief Financial Officer, Mr A addressed the hearing and outlined that he understood that the claimant was to be Food and Beverage Manager when she was first offered the position. The Business was run by the Managing Director as one of three share holders and the Managing Director had then become the sole owner in March 2019.

Mr A told the hearing that he had cause to address the claimant on the excessive number of hours she was working. The claimant had sought to justify her attendance as needing to be there. He also spoke to her on cash and stock.

The business suffered some stock losses and till variations in Autumn 2019 which became a topic of external investigation. The claimant had not been implicated in this and an Investigative Report had not been filed.

The Managing Director had asked that he compile a letter which contained the terms for the complainant’s dismissal. Mr A completed this as Company Secretary. He attended the meeting on December 18 with the claimant.

In response to the claimant’s representative questions Mr A confirmed that the claimant performed her role adequately but struggled with Inventory management and significant losses had followed. She had not been replaced.

He was not aware of any job description pertaining to the claimant but advised that an employee handbook was in train.

He confirmed that the claimant had been officially asked to improve. He was not privy to any meetings held between the Managing Director and the Claimant. He confirmed that probation had commenced once the contract was signed on December 17, 2019.

Mr A confirmed that dismissing an employee at Christmas time was not something he had an answer for but confirmed he had not dismissed the claimant and was unaware of reasons for her dismissal. He confirmed that the claimant was the only employee to receive a bonus payment in 2019.

Mr A confirmed that the company had capacity to appoint an Appeals Officer if this had been requested.

The Respondent representative did not wish to engage in a submission on the procedural framework or redress sought by the claimant.

CA-00033536-003 Terms of Employment

The Respondent initially rejected the complaint on foot of a pro active engagement having taken place with the complainant to get her to sign a contract.

The respondent confirmed that statement of terms of employment had issued in December 2019. These were subsequently revised and signed by the respondent on 17 December 2019.

CA-00033536-001 Claim for Unfair Dismissal, Industrial Relations Act

I have considered this claim lodged under the Industrial Relations Act. I accept that the claimant did not advance special circumstances or have 12 months service to ground a complaint under the Unfair Dismissal Legislation.

What I am being asked to consider is the procedural framework surrounding the circumstances of the dismissal which brought this 8-month period of employment to an abrupt end. In this the contract of employment and the procedural progression will be   important considerations for me. I will be examining the issues raised through the fairness and reasonableness prism.

The employer has claimed that it acted in strict accordance with section 3.2 of the signed contract of employment dated 17 December 2019, where the employer held a discretion to terminate employment in accordance with the Probation clause. The claimant rejected this point and contended that the employment should be reviewed as commencing by agreement on 23 April 2019, where probation was never exercised.

Section 3.1 of this contract stated that the employment commenced on 23 April 2019 and was to continue until notice was served in writing by either party subject to clause 12. The employer had inserted a clause which permitted termination with one month’s written notice during the probationary period.

Section 12.2 covered circumstances of immediate dismissal linked to disciplinary, bankruptcy or criminal offences punishable with imprisonment. Section 12.5 covered Payment in Lieu.

My attention was drawn to section 2.2 of the contract which contained a very unusual clause and read like an exclusion clause of the claimant’s rights.

“The terms and conditions of her employment with the company and all such contracts, agreements and undertakings (if any) will be deemed to have been terminated by mutual consent as from the date of the employee’s execution of this Agreement “

Given the claimants unbroken service since April 23 to December 18, 2019, I have found that this must be viewed as an unenforceable clause. The claimant responds to and accepted an offer of employment made by the Employer. She was paid full salary, bonus and annual leave for this period. The Employers conduct manifested an intention to contract from the outset and I cannot see that it is fair reasonable or plausible to determine that the employment began for the purposes of probation on December 17, 2019.

In this, I have reflected on both oral submissions and find that the employer neglected to undertake any probation with the claimant. There was also a considerable delay in issuing a contract.

This was set against a backdrop where the claimant was issuing contracts and undertaking probation for employees under her stewardship in the commensurate period .I cannot accept that the employer can rely on December 18 as day 1 of the contract, even if I am incorrect on this and probation was in essence commenced on December 18, there are no records of performance evaluation or set targets available to me in this case commensurate with that date .

The Labour Court has consistently set down a standard for termination of employment during probation and they have stressed the essential requirement to practice fair procedures and natural justice.

I found the claimant very clear and cogent in her address to the hearing. However, I also found than in working hard during her employment, she may have neglected to secure personal employment protection in the form of contract, performance appraisal or exercise of probation. I could not establish a formal reporting relationship on the contract apart from a “dotted line reportage “confirmed by Mr A.

I was struck by her reflection that the “wind had changed in her direction “from October 2019, yet this seemed to coincide with a glowing endorsement received from the Managing Director. I was confused by this and would have liked to have met the Managing Director to assist in a resolution of this clear conflict.

In this case, the employment relationship appears to have been built on a friendship which may have gone some way to explaining why the employment relationship was not formalised in writing in enough time to guide the employment. However, it does not excuse this delay.

I have reflected on both party’s recollection of the December 18 meeting arranged by the Managing Director. The facts of which were not disputed.

I was particularly struck by the reported location of the meeting, an open area of a Hotel foyer. I found this to be inconsistent with where the claimant told me meetings were habitually held, behind a closed door.

I have found that the employer did not comply with any of the rules of fair procedures or natural justice. The way this employment was terminated was callous in the extreme and has clearly left a traumatic mark on the claimant. Whatever problems existed for the parties and I take Mr A’s account of this seriously, there was enough guidance in the latter-day contract to address these issues outside of a summary dismissal. The employer had a Human Resources advisor and appears not to have utilised that function.

Everyone has a right to their good name and in this case, the employer had scant regard for this. I can see that the impact of this dismissal and the manner in which it was conducted has had a negative enduring effect on the claimant. She now works in a position which pays far less salary and benefits.

I would have much preferred to have seen an internal appeal exercised in this case. I appreciate that the responsibility for leading out on this rests with the employer. However, the claimant was vastly experienced in people management and ought to have considered this option.

The employer did not accept my invitation for a comment on the procedural framework involved in the case.

I have found considerable merit in this dispute.

CA-00033536-003 Terms of Employment

I have considered both parties submissions in this claim. Section 3 of the Act provides that:

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee ’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014 );

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000 ;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.

(1B) Where a statement under subsection (1A)contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith. ]

(2) Each statement referred to in subsection (1)and (1A)shall be given to an employee notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d)of subsection (1A)or paragraphs ] (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1)or (1A) ] shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section ] shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)or (1A) ] ) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

As the complainant’s employment commenced on 23 April 2019, her employment is governed by this provision of section 3(1)(A) of the Act.

There was no dispute on the recorded date on which the respondent signed the terms of employment issued to the complainant on 17 December 2019. This is well outside the statutory time limits outlined above and must be viewed as a continuous contravention of Section 3 of the Act.

Given the complainants central role in proving contracts of employment to staff, I would have expected a more pro-active approach in terms of her personal statement. I appreciate that the respondent is obliged to have led out on this initiative.

I find the claim well founded.

CA-00033536-001

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found considerable merit in this dispute. It is wholly unrealistic for me to recommend any restitution of the employment relationship, trust and confidence has disappeared.

I recommend that the parties have regard for and implement this recommendation in the spirit of mutual closure.

1. I recommend that the Employer issues a written apology to the claimant because the December 18 was introduced and conducted.

2 I recommend that the Employer pays the claimant €15,000 in compensation for the manner of her dismissal.

This should be accepted in full and final settlement of all claims between the parties and to facilitate the claimant to move on with confidence.

I would strongly recommend that the employer revise its practice of issuing contracts of employment so late in the tenure.

CA-00033536-003

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the Dispute and Complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act 1994 requires me to decide in accordance with section 3 of that Act.

I have found the claim to be well founded. The absence of this key document within the obligatory period contributed to the circuitous routing of the employment relationship in this case. It constituted a major omission.

I order the respondent to pay the complainant €2,500 in compensation for the breach of the Act.